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Who can appoint an arbitrator?

Under article 11 of the UNICTRAL Model Law, parties are free to agree on how to appoint an arbitrator, but what if they fail to agree?

Under article 11 of the UNICTRAL Model Law, the parties are free to agree on a procedure of appointing the arbitrator(s). However, if the parties fail to reach an agreement, then each party shall appoint an arbitrator and the third will be appointed by the two arbitrators or, if they fail to reach an agreement (within 30 days), the third arbitrator will be appointed by a national court or another specified authority at the request of either party. In cases involving multiple parties (as claimant or as respondent) and if three arbitrators are to be appointed, the multiple parties should jointly appoint an arbitrator, unless they agreed to another method of appointment.

In the case of a sole arbitrator, the parties should reach an agreement within 30 days after receipt of a proposal for the appointment and, if no agreement can be reached, a sole arbitrator may be appointed by the appointing authority upon the request of a party.

Article 11(4) of the Model Law provides that, where the parties have an agreed appointment procedure but:

(a) a party fails to act as required under such procedure,

(b) the parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure, or

(c) a third party, including an institution, fails to perform any function entrusted to it under such procedure,

Any party may request the court or other authority specified in article 6 to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.

An arbitrator may be appointed in a number of different ways:

  1. by the parties
  2. by an arbitral institution; for instance, in an arbitration under the HKIAC Rules, where the parties are unable to agree on the appointment of an arbitrator, either party may request HKIAC to make the appointment
  3. from a list of accredited arbitrators (for example, in the case of CIETAC)
  4. in the case of a presiding arbitrator, by the fellow arbitrators
  5. by a trade association or professional institution, or
  6. by a national court.

Just as the parties can agree on the appointment procedure, they may also set out in the arbitration agreement any qualifications or requirements for the arbitral tribunal. Therefore, however and whoever appoints the arbitrator(s), must have in mind the criteria set by the parties to ensure that any subsequent award is not set aside or unenforceable on the basis that the intention of the parties has not been given effect. This is also emphasised in art 11(5) of the UNICTRAL Model Law as follows: “The court or other authority, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties”.

Some factors to consider when deciding on the qualities to be sought in an arbitrator:

  1. It is generally advisable not to set out a full set of criteria for an arbitrator in advance of a dispute, since much will depend on the dispute itself.
  2. Setting out restrictive qualifications might mean that, when a dispute does arise, there is no one available who fulfils the criteria.
  3. Some (but very few) arbitral seats, by their national law, have restrictions on the choice of arbitrator (for example, must be a qualified lawyer).
  4. Consider appointing a lawyer if the arbitration involves a sole arbitrator; in the case of three arbitrators, consider at least including one member of the panel who is a lawyer or has extensive experience of acting as an arbitrator
  5. Where the presiding arbitrator is likely to be a lawyer or legal academic, it would be generally sensible for the parties to agree that each appoints an arbitrator with a technical background.
  6. The arbitrator(s) have a good working knowledge of the language in which the arbitration is to be heard.

Ensure that the arbitrator is not a national or resident of a country affected by a sanctions regime; checks must be made under relevant domestic law on sanctions; however, some arbitral institutions have issued sanctions guidance and policy, for example, HKIAC, HKIAC Policy on Proceedings Affected by Sanctions.

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International Arbitration: Process and Procedure

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